I. FACTUAL AND PROCEDURAL BACKGROUND

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1 Filed 7/13/07 In re Michael A. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR In re MICHAEL A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL A., Defendant and Appellant. A (Solano County Super. Ct. No. J36134) The minor challenges the juvenile court s sustaining of an allegation of receipt of stolen property in a petition pursuant to Welfare and Institutions Code section 602 for receipt of stolen property. (Pen. Code, 496, subd. (a) count 1.) 1 Because we agree that there was insufficient evidence that the minor possessed stolen property, we reverse the order sustaining the allegation. I. FACTUAL AND PROCEDURAL BACKGROUND The minor was charged in two separate petitions with receipt of stolen property, a felony ( 496, subd. (a) count 1), unlawful taking or driving of a vehicle, a felony (Veh. 1 All further statutory references are to the Penal Code unless otherwise indicated. 1

2 Code, 10851, subd. (a) count 2), receiving stolen property (motor vehicle), a felony ( 496d, subd. (a) count 3), and unlicensed operation of a motor vehicle, a misdemeanor (Veh. Code, 12500, subd. (a) count 4). Counts 2 through 4 related to an incident that took place on July 22, The juvenile court did not sustain counts 2 and 3. The court sustained count 4; however, the minor does not challenge that finding on appeal. We therefore need not set forth the allegations with respect to counts 2 through 4. As to count 1, the following evidence was presented at a contested jurisdictional hearing on November 13, In the early morning hours (about 2:00 a.m.) between December 24 and December 25, 2005, Rosa Magallon was feeding her newborn baby at her home in Vacaville when she heard someone running through her backyard. She went to a room that faces the street and saw a red truck with its lights off. Magallon looked closely at the color of the truck, because people doing construction work at her house had a red truck, and she suspected it might be them breaking in. Magallon was unable to see the face of the driver or the passenger in the bed of the truck. She called the police. That same night, Jason W. (a minor) was walking near Foxboro Elementary School (close to where Magallon lived), when one or two cars or trucks pulled up, and the people inside said things that led Jason to believe they wanted to fight. Jason jumped the school fence, but was followed by about seven people. He was knocked to the ground in the middle of a park, and people started kicking him in the head and face until he was unconscious. They took his blue jeans and his shoes, a pair of red and white Nike Dunks. Jason was drunk at the time of the attack. Jason flagged down police officer David Spencer at around 2 a.m. in the 600 block of Youngsdale. Jason appeared disheveled, muddy, and wet; he was not wearing pants or shoes. While Spencer was speaking to Jason, a pickup truck passed them, and Jason pointed. At some point Spencer went to the location where a red pickup truck had been stopped. Officers had already detained four people by the time Spencer arrived at the 2

3 scene, and they were ultimately arrested. When asked what he observed when he arrived at the pickup truck, Spencer testified that [i]n the bed of the pickup truck there were a pair of blue jeans and a pair of... red and white Nike shoes. When asked on crossexamination whether he was the person who found the jeans and shoes, Spencer testified, I did not initially observe them, no. Police officer David Novelli testified that he was dispatched to the area of Foxboro Parkway and Youngsdale Drive at around 2 a.m. for a report of a possible strong-arm robbery, as well as a report of a suspicious vehicle. Novelli first saw the minor detained near a truck, standing on the sidewalk. Novelli did not see the minor (or anyone else) get out of the truck; he assumed based on radio traffic that those who were detained near the truck had come from the truck. He did not see anyone who walked up from somewhere else being detained. The police returned Jason s pants and shoes to him. Although Jason confirmed that the jeans and shoes belonged to him, he was unable to identify anyone who attacked him. He had his back toward his attackers when he was running from them, and he was unable to see them. The minor moved for a directed verdict, which the juvenile court denied. The juvenile court stated, however, that it was somewhat struggling with whether the prosecution had met its burden. The juvenile court concluded that the People had just squeaked by, and sustained count 1 of the petition. Following testimony regarding events that took place on July 22, 2006, the juvenile court sustained count 4 of the petition. (Counts 2 and 3 were not sustained.) The juvenile court declared wardship on November 27, 2006, and placed the minor on probation with various conditions. The minor timely appealed. 3

4 II. DISCUSSION We review a challenge to the sufficiency of the evidence to support a juvenile court judgment sustaining the criminal allegations of a petition pursuant to Welfare and Institutions Code section 602 to determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371, original italics.) An appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) Section 496, subdivision (a) provides, in relevant part: Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison.... In order to sustain the People s petition on a receiving stolen property count, the People must prove that (1) the property was stolen; (2) the minor knew it was stolen; and (3) the minor had possession of the stolen property. (In re Anthony J. (2004) 117 Cal.App.4th 718, 728 [mere presence of minor in stolen vehicle not enough to show he possessed the car]; see also People v. Land (1994) 30 Cal.App.4th 220, 223 [possession of stolen car established where defendant knew driver well, knew car was stolen, and vehicle was used for joint criminal enterprise]; People v. Myles (1975) 50 Cal.App.3d 423, 428 [passenger did not possess stolen television sets found in trunk of car].) The minor does not dispute that the property was stolen, but argues that the People failed to establish that he possessed the property, or that he had 4

5 knowledge that the items were stolen. We agree that there was insufficient evidence that the minor ever possessed the stolen property, and therefore reverse the judgment as to count 1. Possession of the stolen property may be actual or constructive and need not be exclusive. (People v. Land, supra, 30 Cal.App.4th at p. 223.) Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property. (Id. at p. 224.) Dominion and control are essentials of possession, and they cannot be inferred from mere presence or access. Something more must be shown to support inferring of these elements. Of course, the necessary additional circumstances may, in some fact contexts, be rather slight. (People v. Zyduck (1969) 270 Cal.App.2d 334, 336, italics added [mere presence of passenger in car with stolen chain saw on rear seat not enough to show possession].) Here, there was substantial evidence that the stolen jeans and shoes were found in the bed of a truck, and that the minor was detained next to that truck. However, there was insufficient evidence to show that the minor had a measure of control or dominion over the stolen property. Respondent acknowledges that there was no direct evidence that the minor was in the truck cab or bed when police officers stopped it, but argues that there was nonetheless substantial evidence that the minor was either in the cab or bed of the pickup when it was stopped by the officers. (Italics added.) Respondent then concludes that there was ample evidence that the minor had at minimum, constructive possession of the stolen pants and shoes.... We disagree. Even assuming that we may infer from the minor s detention near the truck that he was at one point in the truck, this is not enough to show that the minor ever had actual or constructive possession of the stolen property, because we do not know whether the minor was detained in the bed of the truck (where the stolen property was apparently found) or in the cab of the truck. Respondent does not direct us to any case where constructive possession was found where a defendant was detained in a different area of a truck than where stolen 5

6 property was discovered, and our independent research has not revealed any. However, People v. Myles, supra, 50 Cal.App.3d 423, which addressed the discovery of stolen property in the trunk of a car, is instructive. In Myles, defendant was a passenger in a car that held two stolen televisions in the trunk. (Id. at pp ) Defendant was at one point observed standing outside the car looking inside the trunk with the televisions. (Id. at p. 426.) He was a passenger in a car owned and driven by someone else, and he was one of several people seen looking into the trunk, which was insufficient to show that defendant possessed the stolen televisions. (Ibid.) Mere access or proximity to stolen goods is not sufficient to infer possession; dominion and control must be shown. (Id. at p. 429, italics added.) Because the evidence here does not reveal whether the minor was in the same area of the truck where stolen property was found (assuming that the minor was in the truck when it was stopped), we simply cannot say on this record that the minor had dominion or control over Jason s jeans and shoes. We note that there was no testimony about access to the bed of the truck from the cab i.e., whether there was a back sliding window through which someone in the front compartment could reach the bed. Respondent argues that Myles is distinguishable because, unlike here, the property at issue was found hours after it was stolen, at a distance from where it was stolen. (People v. Myles, supra, 50 Cal.App.3d at p. 426.) We agree that circumstances surrounding the minor s detention near the pickup truck are suspicious. The Myles court emphasized, however, that suspicious circumstances that might support an inference that a defendant knew property had been stolen are not enough to demonstrate that he 6

7 was in possession of that property. 2 (Id. at p. 428.) And although we agree with respondent that In re Anthony J., supra, 117 Cal.App.4th 718 and People v. Zyduck, supra, 270 Cal.App.2d 334 are distinguishable because the stolen property here was found closer to where it was taken and soon after it was reported stolen, the fact remains that the prosecution never sufficiently established that the minor possessed the stolen property. We agree with the general proposition that the additional evidence beyond mere presence or access that establishes possession may, in some fact contexts, be rather slight. (People v. Land, supra, 30 Cal.App.4th at p. 225.) Respondent, however, directs us to no additional circumstances that establish the minor s possession (actual or constructive) of stolen property. (Ibid.) Because we conclude that substantial evidence does not support the determination that the minor possessed stolen property, we need not consider whether the People established that the minor knew that the property had been stolen. (People v. Myles, supra, 50 Cal.App.3d at p. 428.) 2 The juvenile court also acknowledged that the prosecution had to show more than suspicious circumstances, observing: [W]hat I am attempting to do here and it s very hard is separate what I believe happened that night, and personally I have very little doubt about what the legal standard of proof trying to hold the People s feet to the fire in proving their case. So before I say which way I m going, I m going to let you [the minor] know I have no doubt that you were part of it, but that s not the legal standard. Doesn t matter what I personally think. What matters is whether I think the prosecution has met [its] standard [its] burden of proof in this particular case. And I am, as you can well see, somewhat struggling with that issue. 7

8 III. DISPOSITION The order sustaining the allegations of count 1 is reversed and remanded for further dispositional proceedings consistent with this opinion. Sepulveda, J. We concur: Reardon, Acting P.J. Rivera, J. 8